Disruption is definitely the hot term du jour. It mostly is a fancy way of saying “change”, but that doesn’t quite do it justice. To truly understand it, read this wonderful post by Jordan Furlong on “What Disruption Really Means.”
As with change, many people view disruption as one would a cloud of locusts on the horizon. Others are “disruption deniers” who refuse to believe that any significant change is coming to the legal industry any time soon, and anyone who tells you different is a loser who can’t hack it in the real world. And then there’s the third camp, which I happen to fall into. I am waiting for disruption like a fat kid for the Easter Bunny, a Born-again Christian for Jesus, and Linus for the Great Pumpkin, combined. Disruption can’t hit fast enough for me.
As the title of this column revealed, I am a librarian. Formerly an academic law librarian, I currently work for a non-profit consortium of law schools that publishes open casebooks and law. I have an admittedly narrow focus on the legal industry, but one that touches just about every corner of it: legal publishing.
Many people think that legal publishing was disrupted years ago, when we began to make the big switch over to electronic research tools. To the contrary, as Sam Glover on Lawyerist points out, the switch to electronic legal publishing/research has not been disruptive. I would agree with that—as far as it applies to lawyers. It’s been hellishly disruptive to libraries and librarians, who have had to change the way they collect, access, distribute and pay for legal information. But for the end user, it hasn’t really been too much of a change. Disruption is in the eye of the beholder, I guess.
But that being said, legal publishing needs to be disrupted because legal publishing is broken. In its current state, it only serves to keep information locked away from people. And, given the unique status of legal information (which we can define here as cases, as well as laws and regulations passed by all levels of government bodies), you don’t even have to be one of those “information wants to be free” hippies to agree that there is no reason why this particular subset of the information ecosystem shouldn’t be free, open, accessible and preserved for all.
From the very beginning of our nation, government outsourced some of the publishing of its information products to private publishers. And some privatization of government services was good: Hats off to John West for coming up with the Key Number indexing system and making it easy in pre-computer days to do cross-jurisdictional research.
Even today, editorial content additions to primary law have value for researchers billing in six-minute increments. Consider, for example, the differences between an unannotated code and an annotated one. Whether that value is worth the cost is debatable. But having to pay for primary law without editorial content is wrong. Indeed, I truly believe human rights—and perhaps also our First and Sixth Amendment rights—are being violated by the government’s not providing access to legal information. I’d love to see a brief or law review article draw a line from the Sixth Amendment, to Gideon, to a Right to Legal Information Access.
Sometimes the corporations won’t even sell you the law. Lexis is the Official Publisher of the Georgia Code. Another publisher, Fastcase, asked quite reasonably to purchase a copy. After all, West buys one. But Lexis refused. This is a very understandable business tactic, but doesn’t the fact that a corporation has the final say on who accesses the law make you a little uncomfortable?
Of course, when government does bother to publish its own law, it sucks at it. Bad formats, limited preservation, and little to no authentication or even “official” status—sometimes all four in a single website! A PDF on a website is not helpful. It’s free to read, sure, but the information contained within that PDF is just as locked away as it would be if it were a book on a shelf. Law needs open publishing.
The real benefit to “born digital” information, besides its obvious cost savings, is that its creation is merely the starting point. Each case, law, or regulation (and the content contained within them) is a building block that can be remixed, reused and combined in new ways. Imagine being given a pile of Lego bricks and being told that you can build something with them, but you’re not allowed to click them together. That’s what a bunch of PDFs on a website is to a legal-website developer. Open publishing would allow you to click those bricks together, and maybe also grab some from your buddy’s pile and create something new.
Another common tactic is for governments to deny all responsibility for the law that they are publishing. The terms and conditions on the Kentucky Revised Statutes as provided by the Commonwealth of Kentucky say, “The files making up this Internet version of the Kentucky Revised Statutes do not constitute official text of the statutes and are intended for informational purposes only. No representation is made as to the accuracy or completeness of these sections. The certified versions of the Kentucky Revised Statutes should be consulted for all matters requiring reliance on the statutory text.” Although sophisticated users of the site would recognize that as CYA legalese, how many sophisticated users are utilizing a free government website? Oh, and who has the certified versions? West and Lexis. If you want to be confident in your research results, you’ll need to pay for it.
The preservation and authentication piece of the problem here is no small matter either. With so many jurisdictions switching to electronic publishing because it’s “cheaper”, yet not authenticating or preserving it properly, it is not beyond the realm of possibility that one day in the future, we will have no idea what a given law looked like on a certain date. Sure, it might be something “minor” like what the zoning code in Valparaiso, Indiana was in 2014, but I personally am not ready to accept that only “major laws” that affect people who live in East Coast cities are the only ones worth preserving. The Uniform Law Commission has passed the UELMA, which will require legal materials (although not necessarily case law) published by governments to be authentic and preserved. It is slowly being adopted by state governments.
Finally, in a move that really aggravates me as both a lawyer and a librarian, both corporations and governments slap copyright notices on law. Not just, for example, on the statute headings which some corporations have had to fill in because governments never bothered to do that. That’s understandable. Sort of a rude play, but understandable. No, I’m talking about the actual text of the law. Copyrighted. Look at the Wyoming Statutes page. What in Hell was wrong with the people who did that, to cause them to think it was okay? It’s far from a unique case too. Ed Walters, CEO of Fastcase, explains the phenomenon in his VoxPopuli post “Tear Down This Pay Wall.”
Of course, even though all of the above have been issues for a while, libraries have always been the workaround. Can’t afford electronic research? Go to a library. Unfortunately, the consolidation of the legal publishing market has had the same effect that most monopolies have: Libraries simply cannot afford to keep primary law available, let alone any of the secondary materials that are necessary to understand what the primary law means. That means poor people with legal problems are out of luck. Moreover, I don’t believe it is unthinkable that soon, small and solo practitioners will have difficulty practicing in certain areas because they simply cannot afford the research costs.
At the present time, 80% of people who want legal representation aren’t able to afford it. Even worse, if they want to research the law themselves, they are unable to access the information they would need to do so, because freely published law isn’t open or comprehensive. They thus have two strikes against them, and that’s before they even set foot into the legal system. The high cost of legal research will soon work its way up, and lawyers on the bottom of the economic ladder will soon find themselves unable to afford legal-research tools.
This is a situation crying out for disruption. There is a huge market out there of people who need to access legal information, and new technological advances are happening every day that will easily replace the old editorial-content additions.
The Disruptive Solution to the Current State of Legal Research Accessibility
So, what’s the disruptive solution? I propose an Open Online Law Library. It would contain all the primary law from every jurisdiction in the United States, and allow for front-end cross-jurisdictional searching by the public, as well as bulk downloads in malleable formats for developers. Ideally, this Open Online Law Library would be hosted by the government, but a non-governmental organization would suffice. Besides, one of the benefits of open, bulk downloads is that there could be as many copies available as people would like.
As I learned at “Law Via the Internet” this year, there are several exciting project in the works, and open law depositories online. These include Court Listener, Public.Resource.org, State Decoded, Justia, and, of course, the Granddaddy of them all, the Legal Information Institute. Some say we should just construct a framework that links all of these. However, a single depository (and its copies) would encourage trust in the holdings of it by the professional community of researchers. Anyone who has spent time on the web has seen a service suddenly go out of business. It would be a shame if we lost, for example, the Ninth Circuit decisions because the organization we were trusting to publish that piece of the puzzle went dark. Also, a one-stop shop would allow for non-professional researchers to search broadly in situations in which they don’t know exactly what they are looking for at first.
Once the raw material is available, who knows what tools and resources may be available? There is a whole world of developers out there who have thus far been stopped by the fact that the law isn’t available for them to . . . well, develop. At first I imagine much of their efforts will be more altruistic or academic, and aimed at assisting those that have been shut out of the system—namely, the 80% unable to be helped by even Legal Aid. Then, as is the case with disrupted technology, it will slowly work its way up the food chain and developers will realize that there’s a paying market out there, while law firms realize that there are high-quality research resources that are cheaper than the ones for which they currently pay.
Disruption in legal publishing will never happen until the raw material—a.k.a. the law—is made open and accessible by the government. Or, at the very least, if those in the open-law- publishing realm start sharing their holdings (or, more correctly, if someone goes around and collects their publications together and normalizes them) so that the virtual shelves of the Open Online Law Library could begin getting stocked. I’m not sure what the tipping point will be: When will enough of us in the legal community realize that a new publishing scheme is needed.
In the meantime, disrupt away. I’m waiting.
Note: A version of this column was originally published at SarahGlassmeyer.com.